pageok
pageok
pageok
A Constitutional Amendment on Foreign Law:

The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "he Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosenkranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosenkranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosenkranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.

The most interesting part of Rosenkranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upn to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal — perhaps killing a gnat with an elephant gun, Rosenkranz acknowledges — but Rosenkranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosenkranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosenkranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosenkranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.

Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosenkranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosenkranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.

Steve2:
Given that the 9th went the way of the Privileges &Immunities clause long before Bork dismissed it as an "inkblot", I don't think it's a very good piece of evidence for amendments that are supposed to instruct constitutional interpretation actually having much impact.

And I've got to ask, how common is citation to foreign or international law (outside the context of cases where it's relevant - I would think it hard to write a ruling in Medellin v. Texas without reference to the ICJ), and how much weight does it get. I mean, is "rely" an accurate term for what courts do when they reference foreign/international law, or is the referenced foreign/international law much less foundational to the judgments and used in a "There are three reasons why we rule X, and we're going to toss in a quick reference to international law as a reason four" sort of way?
11.17.2007 10:12am
Bruce:
So if there's an issue with a contract with a choice of law clause and it specifies British law, how does the court decide the contract issue? How does it decide choice of law issues or forum conveniens issues? Suppose someone is suing to enforce a foreign judgement and the defendant argues it is inconsistent with American public policy (e.g., the First Amendment) -- do all such defendants now win? What about plaintiffs suing under the Alien Tort Claims Act for human rights abuses in foreign countries -- how does the court decide if customary international law was violated? What about a multilateral treaty that relies on international law norms for its interpretation -- how does the court decide how to interpret the treaty? This proposed amendment is nuts.
11.17.2007 10:44am
Chico's Bail Bonds (mail):
Rosencranz argues the Constitution was motivated in part to prevent imposition of foreign law. I think it would be more accurate to say it was motivated to prevent imposition of ENGLISH law.

This makes his constitutional amendment interesting because there are 0 justices on the Supreme Court who think it is wrong to look to English law in interpreting the Constitution. In fact, it is probably even more accurate to say that the Constitution was motivated to impose what the founders believed was the "true" English law. Thus, while some of Rosencranz arguments are fine, the argument about imposition of foreign law seems like a very bad starting point.
11.17.2007 10:58am
martinned (mail) (www):
L.S.,

@Bruce: I think the proposed amendment only meant to rule the interpretation of the constitution, not the interpretation of the ATCA or anything else.
11.17.2007 10:58am
Bemused Observer:
There should be little doubt, in Rosencranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation.

Little doubt, eh? I'm always amused when legal scholars of a conservative/libertarian bent, like Mr. Rosencranz, invoke the hallowed Founding Faddahs as a means of marginalizing foreign and international law. In fact, the FF's were extremely receptive to "the law of nations" as part of American law. An old yet useful law review article (useful in the sense that it was written well before the "foreign moods, fads, or fashions" trope so beloved amongst the conservative/libertarian legal cognescenti) is Edward Dumbauld, John Marshall and the Law of Nations, 104 U. PENN. L. REV. 38 (1955).

What's remarkable is that both the John Marshallites (?) and Jeffersonians were hospitable towards "the law of nations." For example, Dumbauld writes: "Secretary of State Jefferson on June 5, 1793, writing to the French minister, spoke of "the laws of the land, of which the law of nations makes an integral part." 7 The Works of Thomas Jefferson 364 (Ford ed. 1904)." But, wait, there's more! Qouth Dumbauld:


And in discussing with the French minister a case pending in an American prize court, Secretary of State Jefferson thus proclaimed the universality of the law applied by such a tribunal: "It happens in this particular case that the rule of decision will be, not the municipal laws of the United States but the law of nations, and the Law maritime, as admitted and practised in all civilized countries; that the same sentence will be pronounced here that would be pronounced in the same case in the Republic of France, or in any other country of Europe ...."



Somehow, I doubt the Federalistas dwelt on this aspect of 18th century legal history at their annual DC confab.
11.17.2007 11:24am
Cornellian (mail):
This seems to me to be a proposal designed more to generate publicity than anything else.

And didn't everyone rush to English precedents to try to figure out what "High Crimes and Misdemeanors" meant during the Clinton impeachment?

I do think that foreign precedents should not be relied upon to determine the meaning of the U.S. Constitution (other than English precedents in certain limited circumstances, for obvious historical reasons) but such a problem if there is one does not begin to get into the range of requiring a constitutional amendment.
11.17.2007 11:33am
TerrencePhilip:
Bemused,

maritime law is a species of international law; Rosencranz's proposal does not address this, he is only talking about cases involving interpretation of the US constitution.

Of course, his reasoning for proposing this eludes me. Suppose it passed- what effect would it really have? Justices who found an argument compelling could just use the reasoning without citing the foreign source. Usually though, there is not really anything in the foreign decisions that adds much to the present case; it is sort of a me-too exercise implying a world community of wise judicial elders. ("We note the highest courts of Russia, Italy, and Germany agree with this view" or some other such drivel.) Again, the only effect would be that the American justice could simply take the desired position, and leave unsaid the fact that other countries' legal systems agree. I think the legal system needs more transparency and clarity, not less; why not allow judges to fully explain the basis for a decision, and leave to the rest of us to use that information to agree, criticize, and make decisions on what kind of people to nominate in the future?
11.17.2007 11:41am
tarheel:
I think we can safely understand "foreign" in this context to mean any precedent that points to a different interpretation than my own. Kind of like the meaning of "judicial activism."
11.17.2007 11:47am
Alex Bensky (mail):
It's not just the foreign law, it's what foreign law. I've seen a few decisions from Justice Ginsburg and it's hard to know on what basis she chooses foreign law as an interpretive basis other than it's something she agrees with. I don't recall her or any other foreign law proponents deciding against an outcome they want because of foreign law.

And which foreign law? The UK's? Australia? France?
11.17.2007 11:48am
GV_:
This is silliness. In cases in which foreign law has been cited, it has never been as controlling precedent. Instead, it has simply been cited as extra support for the court's conclusion. What would banning the citation of foreign law mean, then? This is just another typical academic idea that someone wants to throw around so they can publish 6 law review articles about it. Those 6 law reviews will spawn 15 responses. Three or four professors will end up getting tenure by arguing back and forth about whether something should become a constitutional amendment that has no chance of passing and that would have no effect on the real world if it did pass.

And if we're going to ban the citation of foreign law when interpreting the constitution, can we start banning other non-primary sources as well? No more citing your own personal experiences when you're interpreting the Fourteen Amendment. (Sorry Justice Thomas, that means no invoking your own peculiar story when discussing affirmative action.)No more citing law and economics articles when discussing due process rights. Indeed, why is it ever okay to cite to law and economics articles when interpreting any piece of legislation? Isn't that subverting the will of the people as well?

Finally, Alex Bensky could you point to the "few" decisions from Justice Ginsburg that cite to foreign law? I'm willing to be shown I'm wrong, but I can't imagine that Ginsburg has ever cited to foreign law when interpreting the constitution -- or at least, she hasn't done it a "few" times.
11.17.2007 11:56am
Just Dropping By (mail):
TerrencePhilip's criticism is the most astute. The Supreme Court is the Supreme Court. The justices are free to make up any reason they wish for ruling a particular way (and both liberals and conservatives do it), so if justices find a foreign court decision persuasive they can simply use the reasoning from the decision without expressly stating that's what they are doing.
11.17.2007 12:00pm
johnd:
How would this affect the 7th amendment? Hasn't the right to a jury trial been interpreted exclusively through the lens of what cases would be taken by courts of law in England's 1791 courts?
11.17.2007 1:18pm
Dave Griffith (mail):
Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosencranz.

Really? I can hardly think of a clearer slam-dunk for the amendment process. The reasons given in the comments are interesting, but I can't see them swaying a senator or state legislator who knows exactly how a vote against this would be spun in their next campaign.
11.17.2007 1:20pm
Elliot123 (mail):
Foreign law seems quite simple to understand. It's the laws of France, Japan, or Brazil. We can pull a book off the law and determine French or Japanese law. It's the notion of Interational Law that seems problematic. What is it? What is it composed of? What is hiding under the label "international law?"

If it is treaties to which the US is a signatory, then we should just say so. If it is resolutions of the UN, IMF, G8, or decisions by the Court of International Justice, then we should say that. These are very different things, and I suspect there is far too much classified as International Law to even consider using it as a standard.
11.17.2007 2:03pm
Daniel Chapman (mail):
You think Kennedy or Pelosi care about how a vote against this amendment would be "spun?"

It doesn't have a snowball's chance in hell.
11.17.2007 2:04pm
HRN:
Interestingly, Professor Rosenkranz is a former Kennedy clerk.
11.17.2007 2:12pm
Dan28 (mail):

senator or state legislator who knows exactly how a vote against this would be spun in their next campaign.

Uhhh, and how is that exactly? You aren't actually suggesting that there is some major section of the American public that is paying any attention to this incredibly academic debate, are you?
11.17.2007 2:39pm
Randy R. (mail):
Well, this is a silly proposal, from the comments above. But it IS red meat to viewers of Fox News, who seem to think that the Supreme Court regularly relies upon foreign law.

I believe this outcry stems from the Court's decision to now allow the execution of minors or the mentally handicapped, where they mentioned that other 'civilized' countries prohibit that sort of thing. That really pissed off O'Reilly and his ilk, and they just never got over it.
11.17.2007 3:10pm
Russ (mail):
Any judge that uses foreign law in the interpretation of the Constitution should be impeached and removed from office.
11.17.2007 4:38pm
tvk:
I think such an amendment, if passed, would have the potential for far more mischief than good.

First, as someone pointed out before, Tull v. United States, 481 U.S. 412, 417 (1987) (seventh amendment interpreted according to historical English law) presumably goes out the window. The admiralty clause of Article III becomes impossible to interpret (how do you determine whether something is an admiralty case without looking to substantive admiralty law?). Ditto with all manner of seperation of powers and enumeration of powers issues (how do you determine whether something is covered by a treaty--bringing it within the Federal government's power, without looking to the international law definition of "treaty").

On the benefit, anyone who actually thinks that a ban on citation to international law (since you can't remove knowledge of international law from the Justice's heads) will change a single decision such as Lawrence v. Texas et al. is either hopelessly naive or deluded.
11.17.2007 4:56pm
Gildas (mail):
Taken by itself this proposal does not achieve much, but contrary to the posters above there is a significant issue here. What was considered appropriate "international law" in 1791 was a rather narrower idea than the kind of thing that treaties get concluded over today. When you factor in that 'customary international law' (which is binding) today is read by some federal judges to include treaties the United States has not signed or treaties it has not ratified, it is a good idea to create some kind of framework to govern how the ever growing body of treaties and agreements interacts with the constitution.

One idea might be to banish customary international law from having any weight in *domestic* cases. Another might be that since we now enter into treaties which intrude into domestic policy perhaps the ratification process should be altered to include state legislatures rather than Senators. Or perhaps establish a mechanism where the Executive and Congress have the ability to revoke part of a treaty previously signed.

Those are just blue sky thoughts, which I am sure can be improved upon, but the core idea would be to bring some better checks and balances to bear on notions of international law which often go very much away from the idea of 'We the People'.

As for passage of such an amendment? If I am not mistaken one very similar nearly passed Congress in the 1960s, and if framed correctly could be supported by groups as diverse as Labor Unions, anti-globalization groups, the NRA and Homeschoolers. And while you may not like any or all of that list, you have to recognize that they have some clout.

Now I am pretty sure I know what the response of many of the people who comment here to such an idea will be - outrage at the suggestion that sovereignty gets reasserted. But before you all tell me how unnecessary these ideas are, can you tell me why restricting the influence of international councils and committees is a bad idea?
11.17.2007 5:18pm
Gildas (mail):
Suppose someone is suing to enforce a foreign judgement and the defendant argues it is inconsistent with American public policy (e.g., the First Amendment) -- do all such defendants now win?

You know, I think most of us would view that as a feature and not a bug!
11.17.2007 5:19pm
clarice (mail):
Maybe instead of all those wacky questions about stare decisis (i.e. fancy ways to see if nominees would overturn Roe v Wade which they can't and won't answer) some geniuses on the Senate Judiciary Committee should ask what the nominees' views are respecting reliance on foreign law.
11.17.2007 5:40pm
Horatio (mail):
Maybe instead of all those wacky questions about stare decisis (i.e. fancy ways to see if nominees would overturn Roe v Wade which they can't and won't answer) some geniuses on the Senate Judiciary Committee should ask what the nominees' views are respecting reliance on foreign law.

You'll get double-talk and obfuscation signifying nothing. With impeachment as the only remedy to Justices Gone Wild™, there is, for all intents and purposes, nothing to stop them. It started with Marbury v. Madison, and has continued to this day. Roe v Wade - an abomination of law if ever there was one - is proof that Congress is generally incapable of overturning bad decisions.
11.17.2007 6:20pm
elChato (mail):
As for passage of such an amendment? If I am not mistaken one very similar nearly passed Congress in the 1960s . . .

Gildas,

what amendment are you talking about? Got a link?
11.17.2007 6:27pm
allwrits (mail):
Of course any idiot with a Lexis &Weslaw connection who looks at the first 100 years of the SCOTUS can find dozens -- indeed several dozens -- of opinions using foreign law &precedent to interpret our constitution. IF it was good enough for the earliest American jurists it should be good enough for us. This is why people don't join the federalist society, it isn't about logic or consistency, it is about being an auxillary for the most trite legal fads of the day.
11.17.2007 6:30pm
clarice (mail):
Actually, I think such questions would be perfectly appropriate. They do not require the nominee to disclose how he/she would vote on any specific case, but it would be nice to know when, if ever, such reliance would be considered appropriate by the candidate. To ascertain the meaning of a term in common law of long standing, assuming there are no dispositive cases on the point here? To clarify by looking at old British law something unclear in the Constitution without historic reference? Or, to decide that since that is a trend elsewhere--i.e. the death penalty--we should jump aboard?
11.17.2007 6:37pm
martinned (mail) (www):
Or perhaps establish a mechanism where the Executive and Congress have the ability to revoke part of a treaty previously signed.

Obviously, this is already possible. (cf. art 54 and 56 of the Vienna Convention on the law of Treaties)

The only exception is the normal rule on reservations (Whose purpose is to have only part of the treaty apply to a given state.) of art. 19 of the Vienna convention, which states that reservations are not allowed to the extent that they are "incompatible with the object and purpose of the treaty". For example, the US reservation with the anti-torture convention, where it said that it "interpreted" said convention to mean that it prohibits everything the US constitution already prohibited anyway, imho pretty much shows the limit of the kind of thing you can do with a reservation, and therefore also with a partial withdrawal.
11.17.2007 6:38pm
FOB (Friend of Bush) (mail):
Just Dropping By: Your emphasis on SUPREME is what is wrong with most legal arguments espoused in this post. SUPREME doesn't mean SUPREME at all! The SUPREME court is only 1/3 of the government, legislative and executive being the other 2/3. Emphasizing SUPREME as you do negates our whole system of governing. Our government is FOR the PEOPLE, and BY the PEOPLE - not BY the SUPREME Court.

I suggest it's UNCONSTITUTIONAL for ONLY the SUPREME Court to rule on constitutionality; the other two branches should carry equal weight on matters of constitutionality.
11.17.2007 6:41pm
Horatio (mail):
I suggest it's UNCONSTITUTIONAL for ONLY the SUPREME Court to rule on constitutionality; the other two branches should carry equal weight on matters of constitutionality.

Can I get an "Amen, Brother"?
11.17.2007 6:45pm
DangerMouse:
Ultimately, this proposal is a band-aid on a more serious problem: that of tyrannical judges. Any judge hell-bent on imposing their personal views on this country, as a supreme legislature, is not going to be hampered by an amendment directing them to avoid foreign law in their interpretations. They'll just avoid citing to it, even as it's clear their interpretation is based on it. And if the Supreme Court ignores or reads this amendment out of the Constitution, what are we to do then? Grab our pitchforks?

As nice as this amendment sounds, it won't solve the real problem of judges doing things outside of the original understanding of the Constitution. For that, I think a better fix is necessary: judicial elections, the end of lifetime appointments, or an automatic re-appointment vote by the citizens after a certain number of years.

The Framers didn't think that judges could take over this country by making themselves into a super legislature. They were wrong.
11.17.2007 6:51pm
Arkady:
There's an interesting New Yorker article on Justice Kennedy and foreign law, "Swing Shift: How Anthony Kennedy's passion for foreign law could change the Supreme Court" by Jeffrey Toobin (http://www.newyorker.com/archive/2005/09/12/050912fa_fact). In the article, Toobin writes:

The United States Supreme Court has made references to foreign law since the earliest days of the Republic. During the tenure of Chief Justice John Marshall, the Court was often called on to interpret treaties and weighcontroversies involving ships on the high seas, and the Justices frequently cited the laws of other nations in their decisions. In 1829, for example, Marshall analyzed both Spanish and French law to settle a claim by an American who had bought a parcel of land once owned by Spain and later included in the Louisiana Purchase.


I believe that case is Foster v. Neilson, 27 U.S. 253 (1829). It makes for interesting reading.
11.17.2007 7:02pm
Cornellian (mail):
One would think that term limits would make judges more activist, not less. After all, if they're going soon anyway, might as well make the most of the time that they're there.

Anyway, as I've already said, if you don't like the way judges rule, then elect someone who will appoint different judges. The Framers gave the judiciary lifetime tenure for a very good reason, and I see no reason to conclude that they were wrong to do so.
11.17.2007 7:16pm
jim:
So how does this work with the Common Law, parts of which seems to be at the very least assumed by, if not incorporated into the Constitution? One would at the very least think pre-1776 British decisions would be valid, and if I recall correctly, American courts affirmed more recent British Common Law decisions without controversy for many years.

Presume for a moment, also, that there might come to exist some foreign country whose constitution and legal traditions were directly based on American law and our constitution. Would decisions by the court of that country about provisions of its law directly descended from the American constitution really be that much different in kind than a decision made by a domestic court like a state supreme court?

Additionally, there are aspects of Constitutional interpretation that turn on factual considerations that are not the facts of the Constitution itself. You may want to know whether a constructive rule actually produces the results you want it to have, and some other court may already have tried it. You may be weighing a stare decisis question and wonder how much real world impact changing a rule will have, and some other court may have looked at the same thing. None of these presumes that the Founders wanted the meaning of the Constitution itself to rely on foreign law, it just presumes that foreign courts can be a persuasive authority on certain questions of fact.

It seems clear that the problem with international law citations is how or why they are used. If your reason for asking what a foreign court thinks is invalid, your results will be too. But that's the fault of your reason, not the thing you cite.

Should we also ban law review citations because certain ways of using law review articles are clearly interpretively incorrect?
11.17.2007 7:43pm
Gildas (mail):
Gildas,

what amendment are you talking about? Got a link?


I am afraid I don't - as I said I may be mistaken. When the Federal Marriage Amendment first started to gain some traction a couple of years ago, I remember reading an entry on a conservative blog (I don't think it was a law blog, but it was one that sometimes covered the law) that listed five or six alternative amendments conservatives should view as more important to conservative causes than the FMA. One of them was the one to which I refer and one of them had lost in Congress by one vote* in either the 1950s or 1960s. I THINK it was the foreign law one, but am not 100% sure. Unfortunately I can remember neither the name of the blog nor the name of the (proposed) amendment...

If someone else reading this remembers that post I would really appreciate them posting a link!

*I.e. one vote shy of 2/3rds.
11.17.2007 7:51pm
Gildas (mail):
ME: Or perhaps establish a mechanism where the Executive and Congress have the ability to revoke part of a treaty previously signed.

MARTINED: Obviously, this is already possible. (cf. art 54 and 56 of the Vienna Convention on the law of Treaties


Which as I understand the United States has never ratified...


The United States Supreme Court has made references to foreign law since the earliest days of the Republic. During the tenure of Chief Justice John Marshall, the Court was often called on to interpret treaties and weighcontroversies involving ships on the high seas, and the Justices frequently cited the laws of other nations in their decisions. In 1829, for example, Marshall analyzed both Spanish and French law to settle a claim by an American who had bought a parcel of land once owned by Spain and later included in the Louisiana Purchase.


This is a red herring though. In a property dispute on a patch of land owned in territory that was once French and then Spanish and then French again, prior to being sold to the US, then of course the way those foreign laws applied to the title to the land when they held sway there is relevant!

Equally, the phrase 'high seas' means outside of the jurisdiction of particular national laws.
11.17.2007 8:03pm
DangerMouse:
Cornellian:
Anyway, as I've already said, if you don't like the way judges rule, then elect someone who will appoint different judges. The Framers gave the judiciary lifetime tenure for a very good reason, and I see no reason to conclude that they were wrong to do so.


You see no reason? Well, since I can't perform miracles, I cannot make the blind see. Maybe you're fine with living under the rule of the Black Robed Elite. I'm not. And I think that the Framers had good intentions but were specifically short-sighted when it came to the Court, for the specific reason that they thought it was the weakest branch. They were just wrong.

Direct election of Senators was considered a good thing. What's so wrong with directly electing or voting somehow on the Judges?

If people don't want to vote on judges, then I support impeachment of judges who engage in this kind of "bad behavior." I think judges should be routinely impeached. Let them live in fear.
11.17.2007 8:25pm
JBL:
I propose a Constitutional Amendment stating that politicians can only seriously propose Constitutional Amendments when the desired outcome actually requires modifying the text of the Constitution.
11.17.2007 8:35pm
Jason F:
Do people who object to the Supreme Court of the United States looking toward foreign law also object to the Supreme Court of, for example, Illinois looking to the law of Indiana?
11.17.2007 9:42pm
Alec Rawls (mail) (www):
The imposition of foreign legal standards should already be interpretted as unconstitutional under the Article IV section 4 guarantee to the states that they shall have a republican form of government. In the constitutional debates, Alexander Hamilton articulated the first principle of republicanism as that the people shall choose who shall govern them. The idea of the people being the necessary wellspring of the laws is already established in this wrongly vitiated provision of the Constitution.

To see how existing precedent leaves an opening for the guarantee clause to be justiciable, see the last section of my appeal to the Supreme Court from when I tried to overturn California's requirement that candidates for sheriff be drawn from the law enforcement arm of government. (Candidates must in effect be drawn from the incumbent regime, while no "civilian" viewpoints are allowed, deeply compromising the ability of the people to control the government. The equivalent restriction in district attorney races would be to require candidates to have so many years of employment as a deputy district attorney.)

If the proposed amendment were to be put forward, it would be a good time to also establish in the Constitution that no provision of the Constitution can be overturned or infringed by treaty. That would make it impossible to strip American gun rights by having the executive and the Senate approve the proposed U.N. small arms treaty, which requires signatory nations to disarm their citizens.
11.17.2007 9:42pm
big dirigible (mail) (www):
Sounds like a good idea to me. Some obvious benefit, even if mainly prophylactic, and at little cost. And that's always a good deal.
11.17.2007 9:43pm
Benjamin Davis (mail):
Gildas is referring to the Bricker Amendment in the 1950's which was intended to require approval of treaties to be through the federal ratification process and an additional ratification process through (3/4 I believe of) the states. The purpose of the amendment was quite simple - southern states were worried that international human rights treaties might be ratified by the United States which would put in place international legal obligations that would make illegal the oppression of blacks in segregation. Eisenhower was terribly worried about the effect of such an amendment on the ability of the federal government and the President to deal with foreign affairs and worked to head off the vote in the Senate. In exchange for support of his efforts to block the amendment, Eisenhower made an informal promise that he would not submit international human rights treaties for approval by the Senate. That is one very significant reason why human rights treaties languished in the United States for so many years - to avoid upsetting racial segregation.

In the late 40's and 50's the NAACP organized an effort to have the plight of black americans be brought to the attention of the United Nations. Several prominent persons including Eleanor Roosevelt worked hard to prevent the internationalization of the plight of black americans - threatening to leave the NAACP if they went that way. The US UN team worked very hard to split the International Bill of Rights into an International Covenant for Civil and Political Rights and a second International Covenant for Economic, Social and Cultural Rights to weaken those instruments (the US could pick among the two as to which to ratify) with a significant concern being not to upset the oppression of blacks in the United States. There is a professor who has done significant work on the effort to bring the plight of blacks to the international level at that time and all the machinations at the federal government level in the 40's and 50's to block that effort.

As to the proposal of an amendment, the content of international law is treaties, customary international law, and general principles of law recognized by civilized nations (see Article 38 of the Statute of the International Court of Justice). As to treaties, as the Constitution makes international law the Supreme Law of the land it seems problematic for the amendment to exclude international law in constitutional interpretation. As to customary international law, there are folks on the right who consider it state law (Jack Goldsmith et al's arguments which I personally find very unsatisfying). While others consider customary international is federal law pursuant to the Constitution. Whatever the vision internally, the thing that all this discussion and the proposal seems to miss is that international law obligations fall on the United States. The Constitution of our country, just like the Constitutions of other countries are internal law which can not be used to exclude the United States from its international law obligations. If such an amendment were passed and the US decided to go on a path that was at odds with its treaty and customary international law obligations, the US would be in breach of them.

Some folks say so what? The so what is basically a question of how the rest of the world reacts to the way we decide to act. Our interests in international law range over a great number of laws of war and laws of peace topics that are the structure on which much of our life exists. For example, if you have ever traveled abroad there is a customary international law rule about the right to diplomatic protection by your state of nationality (the USA not the 50 states). Vienna Convention on Consular Relations is part of that area but is not all of it. Similarly there is customary international law on protecting embassies. Of course, there is customary international law on the law of the sea.

Many of these customary rules get codified in international treaties. But even if a state is not a member of that treaty, to the extent the treaty states a rule of customary international law that rule is binding on all states. This is not me saying this but it is rather the manner in which states have considered international law operates on them.

On sovereignty, entering a treaty is a sovereign act so it always amazes me that people get upset about sovereignty being impinged by being in a treaty having international law applicable. States enter treaties because being in the treaty is considered better than not being in for them (that is why there is a serious look going on right now by the US to ratify the Law of the Sea treaty). Entering a treaty is an essential act of sovereignty. So much for the sovereignty bugaboo.

As to foreign law, one of the fundamental rules of contracts law is Hadley v/ Baxendale - a 1854 case in Gloucester England that is the foundation for much of the analysis on foreseeability in that area of the law. That decision is said to have been based on a treaties done by a frenchman named Potier at the turn of the 19th century. That foreign idea was adopted quickly in the United States (and around the world in common law) because it was a good idea that still retains its vitality. It seems to me that if there is a good idea somewhere in the world that is of assistance to our justices in understanding our Constitution, we should not have on such blinkers that we are not willing to look at it. That foreign decision would not bind us, of course, but if the Supreme Court were to adopt that rule in the United States it is the Supreme Court's adoption of that rule which would make it binding. And that act would be us saying "this is a good rule for us". I fail to see what is so scary about that.

Obviously, you get into the questions of which cases in which parts of the world. For me, that is a question of method not a question on the substance. One of the things that is needed is to train lawyers in the United States to be able to do that kind of comparative analysis. We are woefully inadequate at that - even our Supreme Court justices are pretty pitiful at it as compared to their equivalents in other countries. A big reason for our inadequacy is the weakness of the training in foreign and international law in our law schools.

Foreign law and international law are usually not bar questions so there is little encouragement for law students to take those courses. Also, there is a certain elitism in those in this area that seem to be suggesting that this stuff is not for the masses. Of course it is for everyone.

I personally think that a great deal of the heat against foreign and international law is just people trying to make a virtue of their ignorance. The ignorance comes from having not been or having been poorly trained in foreign and international law and having had little or no exposure to it in their life. Of course, the other thing is that they may not even see it in their life. So, for example, agreements between postal systems are not seen - but only the letter coming from abroad.

Also, there is a market/money issue I believe in lawfirms. Given the failure of the training in American law schools, the law firms may prefer to hire a foreigner from a country with a greater tradition of training in foreign and international law to help the lawfirm on foreign law or international law issues. That avoids the cost of training American lawyers in this area. It is a kind of outsourcing of the task. A market niche for foreign lawyers in the American system based on our unwillingness to train Americans.

A final point is that much of the training in law schools is not in fact international law but is rather U.S. foreign relations law. This is one of the problems that our government runs into in that the analyses done in US foreign relations law tend to put the President at the top of the heap as opposed to the United States as a whole. Remember, the international law obligations are on the United States and the President (Congress and the Judiciary too) are not above the United States.

By the way, this is not radical stuff I am saying. This is such basic vanilla ice cream international law stuff it is in every elementary international law textbook in the world. The fact that it might be perceived by some of you as somehow extraordinarily radical (presumably leftist) just shows you how deep the ignorance is in our country and the extent of us trying to make a virture of our ignorance.

The proposal at Federalists is a pitiful example of jingoism that we might call neo-Brickerism. It reminds me of how I feel sometimes that neo-con arguments are really just neo-cracker arguments updating Strom Thurmond and Dixiecrat ideology from the late 40's and early 50's.

It seems the effort is to keep the American public's minds enslaved rather than open to the world. The irony of course is that we are in this period of such accelerated globalization that the result will be that those same Americans will not be able to compete as effectively in this game and we risk watching our standard of living continue to decline. Maybe not the 6 per cent who make over 97 000 dollars a year, but all the rest.

Best,
Ben
11.17.2007 10:25pm
Ken Arromdee:
But even if a state is not a member of that treaty, to the extent the treaty states a rule of customary international law that rule is binding on all states.

Entering a treaty is an essential act of sovereignty. So much for the sovereignty bugaboo.

This sounds contradictory. How can entering a treaty be an act of sovereignty in any meaningful sense if refusing to enter it doesn't actually excuse you from its obligations?

(And why should it be considered valid to enter an unconstitutional treaty anyway? It's like saying that if I personally signed a treaty the US must follow it. That's wrong, because I lack the authority to do that. The president doesn't have the authority to sign unconstitutional treaties any more than I have the authority to sign any treaties.)
11.17.2007 10:59pm
Benjamin Davis (mail):
I am sorry it seems contradictory.

Treaties broadly do two things - codify existing international law (state a rule that exists as customary international law already) or develop new law. So if the rule in the treaty is already customary international law (general practice of states accepted as law) accepting or rejecting a treaty that also states that rule does not change the obligation. Acceptance or rejection of the treaty only changes the source of the obligation: customary international law alone as opposed to both customary international law and the treaty. For example, Common Article 3 in the Geneva Conventions is considered a codification of customary international law that binds all states as well as a treaty obligation for all states that sign that convention.

The acts of sovereignty occurred in the creation of the customary international law rule (the state would have participated in developing the general practice accepted as law) and, if it also did so, in the state acceding to the treaty.

It is for the state to determine whether it is meaningful to enter in a treaty that codifies already existing customary international law. One reason might simply be that it is more efficient to have the consensus of the states articulated in the treaty then to have to do a search for the customary international law rule with regard to obligations between State A and State B. A bilateral treaty where one can focus on interpretation of the treaty language more than identifying the customary international law may be considered a great way to go. I think this is one of the reasons the US is looking at ratifying the Law of the Sea treaty. There is lots of customary international law in the law of the sea and a great deal of that is codified in that treaty. Being party to that treaty simplifies the ability to assert rights against other states and argue that other states are in breach of obligations.

On entering unconstitutional treaties, you are looking at the treaty from the internal US vision. Look at it from the point of view of the other state entering the treaty. If the authority that international law recognizes as having the US authority with power to demonstrate United States consent to be bound by the treaty (the Head of State for example) does the things to create a United States obligation as a matter of international law then the United States has the obligation. That approach to treaty obligation is consistent with the basic idea that states can not use their internal law to extract themselves from their international obligations.

One would hope that our federal government would not enter treaties that are unconstitutional, but it does happen. For example, there was a case in the 1950's called Reid v/ Covert in which the American spouse of an American soldier stationed in England was going to be court-martialed for the murder of her husband in England. The United States had entered a treaty with England basically saying that crimes of U.S. soldiers and others related to them would be dealt with through the U.S. court-martial system (as opposed to the English courts - an early Status of Forces Agreement I believe). The Supreme Court said that putting her in a court-martial for the murder pursuant to the treaty violated the Bill of Rights (her right to jury trial).

The treaty remained an obligation of the United States towards England. The issue would then be for the United States to talk with England about a protocol to the treaty to bring the treaty into line with the US constitutional system. The English might or might not be willing to do that. The English might consider us in breach if we did not comply with the treaty obligation. We might also terminate our treaty obligation. Lots of things happen. I believe that the US and England just exchange an understanding about the manner in which non-US soldiers would be treated to deal with the Supreme Court decision. Hope this helps.

Best,
Ben
11.17.2007 11:40pm
Rich Rostrom (mail):
U.S. Courts should not be looking to foreign models on questions of principle. We can make up our own minds about freedom of religion, firearms rights, the death penalty, freedom of speech, or self-defense.

However, it could be very useful for our courts to collaborate (in a loose way) with the rest of the world in figuring out how to apply legal principles to the many novel situations created by advancing technology: cyber-law, bio-tech law, and so on.

As long as we understand that such usage is not binding, I would be OK with it.
11.17.2007 11:50pm
Daniel Chapman (mail):
My point of view IS from the "internal US vision." The Constitution doesn't care about anyone else's POV.
11.18.2007 12:36am
Elliot123 (mail):
Ben,

What's the rest of the story? How did Reid v Covert end? How was she tried?
11.18.2007 12:40am
JosephSlater (mail):
And once again, the political right proves itself to be the champion of the proposed Constitutional amendment as political gimmick. Flag-burning amendment, anti-gay-marriage amendment, balanced budget amendement (which we have heard less about under G.W. Bush), term limits amendment (which heard less about in the days of the "permanent Republican majority" strategy), etc. All stuff that never would have passed, but was thrown out as red meat for the base. Now here's one to solve a problem that doesn't exist (as some have mentioned), and that wouldn't solve the problem if it did exist (as others have mentioned).
11.18.2007 12:59am
Daniel Chapman (mail):
As opposed to the "political left" which just goes ahead and amends the Constitution by judicial fiat?

ZING!
11.18.2007 1:17am
AK (mail):
I've noticed several objections to this amendment that rely on a misunderstanding of the principal arguments against the use of foreign law in constitutional interpretation:

Objection 1: "What if the Court must decide a case based on English Common Law?". Then it's not a case of constitutional interpretation.

Objection 2: "What if the case is about a treaty?" Then it's not a case of constitutional interpretation.

Objection 3: "What if the case involves application of foreign law through a choice-of-law provision or somesuch?" Then it's not a case of constitutional interpretation.

Starting to see the pattern here? It's only Constitutional cases. It's inapplicable to others.

Objection 4: "The Constitution was written by people familiar with English Common Law who used English terms of art, so we have to look to English law to interpret it." I agree, but only to the extent that English law tells us something about the original meaning of phrases like "establishment of religion," "cruel and unusual," "high crimes and misdemeanors," and the like. I don't care one bit what "good behavior" means in modern English law. I only care what it meant 220 years ago.

Objection 5: If America can't look to French law, Iowa should not be able to look to Montana law. I actually agree with this to an extent. Iowa shouldn't use Montana law to interpret its constitution, but it could use Montana law in the course of normal statutory interpretation. But should Iowa decide that it wants to look around at the other states, it won't be able to cherry-pick very easily. Scalia's objection to the use of foreign law is that the justices who wish to use it find "like-minded foreigners" and ignore others. Sure, France may have abolished capital punishment, to Ginsburg's delight, but China hasn't. But we can ignore China. Move right along, nothing to see here. If Iowa cherry-picks a state and that state is in a tiny minority of states, it cannot avoid that fact.
11.18.2007 1:22am
Dan28 (mail):

Sure, France may have abolished capital punishment, to Ginsburg's delight, but China hasn't. But we can ignore China. Move right along, nothing to see here. If Iowa cherry-picks a state and that state is in a tiny minority of states, it cannot avoid that fact.

So the Justices of the Supreme Court decide to look to a first world democracy as an example, rather than looking to a totalitarian dictatorship. Why stop there: Iran still has the death penalty, and unlike every civilized country in the world, still imposes it on juveniles. Why don't we look to Iran as an important moral and legal example for the United States?

This whole outrage is about a fake issue. Nobody thinks foreign law is binding precendent on U.S. Courts. But the fact that virtually every country with a decent sense of human rights has abolished the death penalthy for juveniles is something Justices absolutely should consider when deciding that issue in the United States. The fact that justices do so when considering whether the juvenile death penalty is consitutional poses no more of a threat to democratic legitimacy than if the Justices read a law review article, or for that matter a book. It's just one of many things that can be a part of legitimate, all things considered reflection by a Justice.
11.18.2007 2:28am
Randy R. (mail):
Mouse: "If people don't want to vote on judges, then I support impeachment of judges who engage in this kind of "bad behavior."

Let me guess. Bad behavior is defined as 'making decisions Mouse doesn't like.'

Let me take another guess. Mouse doesn't like decisions that ban executions of minors or the mentally handicapped, and really would prefer that Texas jail men who have consensual sex.

Thank goodness we have a majority of citizens who actually agree with the Court's ruling in these cases, so the judge's aren't really out of line, except over at Fox News.
11.18.2007 2:46am
KevinE (www):
Benjamin Davis: "On entering unconstitutional treaties, you are looking at the treaty from the internal US vision. Look at it from the point of view of the other state entering the treaty. If the authority that international law recognizes as having the US authority with power to demonstrate United States consent to be bound by the treaty (the Head of State for example) does the things to create a United States obligation as a matter of international law then the United States has the obligation. That approach to treaty obligation is consistent with the basic idea that states can not use their internal law to extract themselves from their international obligations."

You make it sound a bit like international law defines the powers of representatives and that internal law cannot limit their power in making treaties. Is this correct?

Negotiations naturally result from any conflicts, as you describe, but is it unreasonable that agreements are implicitly limited by the internal constitution at the time of the treaty, given that the representatives do not have the authority to violate it?
11.18.2007 3:18am
DangerMouse:
Let me guess. Bad behavior is defined as 'making decisions Mouse doesn't like.'

Let me take another guess. Mouse doesn't like decisions that ban executions of minors or the mentally handicapped, and really would prefer that Texas jail men who have consensual sex.


Are you aware that by slandering everyone in this way, it makes people much less likely to actually listen anything you'll say in the future? What is the comment policy on this blog? Oh yeah: avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread.

You do that in every single one of your posts. "Let me guess. X doesn't like something. He must be a homophobe. He must want to criminalize gay sex. He must be repressed. Blah blah blah."

If you had anything substantive to say, you could've said it. Perhaps you would've disagreed with voting on judges because you don't think the populace could be convinced of policies you favor. But you didn't say that, you had to be a jerk.

Sling your crap elsewhere, Randy.
11.18.2007 3:18am
tarheel:

"What if the Court must decide a case based on English Common Law?". Then it's not a case of constitutional interpretation.

Somebody should tell Scalia and Thomas this so they leave the English common law out of their next opinion on the meaning of habeas.
11.18.2007 8:04am
Porkchop:
Professor Davis,

Thanks for your explanation. I often regret not taking an international law course way back when. Your summary is right on point; there is little practical reason for a law student to take such a course. My experience (26 years of practice in DC) has been that most law firms with an "international practice" really don't address most of the kinds of issues that are being discussed here anyway -- they have an international trade practice dealing with anti-dumping and countervailing duties. Non-commercial issues regarding relationships between states seem to be dealt with only by State Department or DOD attorneys, so there is little practical need for such expertise in the private world, except for lawyers involved in human rights organizations and lawyers who take on the occasional pro bono human rights case.

I think that your summary of the motivations for the support of the Bricker amendment may be somewhat narrow, though. Certainly, there were those who supported it in order to maintain a segregated South, but there were also supporters who were old-school isolationists from across the political spectrum. Similar measures had been proposed prior to WWII as part of the isolationist agenda, prior to there having been any discussion of the rights set forth in the UN Charter.
11.18.2007 8:35am
U.Va. 3L:
Objection 1: "What if the Court must decide a case based on English Common Law?". Then it's not a case of constitutional interpretation.

Someone should tell that to the Justices of the Supreme Court, who have spent a lot of ink on how the guarantees of jury trials in English Common Law in 1791 are enormously important to the meaning of the Seventh Amendment.

Objection 2: "What if the case is about a treaty?" Then it's not a case of constitutional interpretation.

But under Missouri v. Holland, treaties can be used to give Congress powers not otherwise enumerated. So the interpretation of a treaty might have quite a lot to do with the Constitution, insofar as it expands Congressional powers beyond Article I.
11.18.2007 1:42pm
Perseus (mail):
And once again, the political right proves itself to be the champion of the proposed Constitutional amendment as political gimmick.

As opposed to the political left, which would never champion such political gimmicks as reviving the ERA (110th.1st:SJR 10), a right to health care amendment (110th.1st:HJR 42), a right to a "clean, safe, and sustainable environment" amendment (109th.1st:HJR 33), a right to "free and adequate education" amendment (109th.2nd:HJR 92), an "every vote counts" amendment (110th.1st:HJ 4), etc.
11.18.2007 2:02pm
JohnThompson (mail):
What! Allow the peasants to have a say in how they're to be governed? Justice Breyer, call your office!!
11.18.2007 2:07pm
Pluribus (mail):
DangerMouse wrote:

Direct election of Senators was considered a good thing. What's so wrong with directly electing or voting somehow on the Judges?

I can see it now. The justices will have their own pollsters, to tell them how the political winds blow before they decide a particular case. And they will have campaign funds, with contributions from those who want to affect pending litigation. And we will have 30-second campaign ads with the justices explaining why their interpretation of the seventh amendment is right, and contrary interpretations are wrong. TV is a wonderful place to debate constitutional issues like this. And the average man in the street is so well-equipped by education and experience to judge the issues (the average man who today can't tell you what the three branches of government are and can't find Georgia on a map). We will have lobbyists and contributors walking the corridors of the Supreme Court building in Washington, bags in hand. Lawyers in the courtroom will be kind of unnecessary, since the real decisions will be made in the corridors. Of course, the lower federal courts would be subject to the same rules as the Supreme Court justices. Hundred of millions of dollars will change hands before we decide who our judges will be, and whose pockets they will be in. What fertile ground for the budding Jack Abrahmovs of the world!

And is it your position that this will be "less dangerous" than the system we have now?
11.18.2007 2:17pm
Cornellian (mail):
Direct election of Senators was considered a good thing. What's so wrong with directly electing or voting somehow on the Judges?

Personally I wouldn't want to appear before a Judge who got elected the year before with the help of $10 million in contributions from the guy on the other side of my lawsuit.

Congressmen and Senators are supposed to respond to the people who supported them - that's why you vote for one guy over the others. Judges aren't supposed to apply the law, not favor the guy who appointed them.
11.18.2007 2:50pm
Cornellian (mail):
What! Allow the peasants to have a say in how they're to be governed?

Right, because they don't vote for the President who appoints the judges, or the Senators who confirm them.

Why not complain about not being able to elect the Secretary of Defense or the Chairman of the Fed?
11.18.2007 2:55pm
Randy R. (mail):
Mouse: "Are you aware that by slandering everyone in this way,..."

If you actually think Lawrence v. Texas or the capital punishment cases were correctly decided, please do so, and I will happily and humbly retract what I said.
11.18.2007 4:02pm
Elliot123 (mail):
"But the fact that virtually every country with a decent sense of human rights has abolished the death penalthy for juveniles is something Justices absolutely should consider when deciding that issue in the United States."

Perhaps the issue is better decided by the legislatures?
11.18.2007 4:39pm
DangerMouse:
If you actually think Lawrence v. Texas or the capital punishment cases were correctly decided, please do so, and I will happily and humbly retract what I said.

Go soak your head. You don't get to insult people, and until you apologize you can just sit there and wonder. And I don't deal with people who make personal attacks first in specific violation of our bloghost's comment policy, and then say they'll retract it when their rudeness is pointed out.

If I agreed or disagreed with those cases or not, it has nothing to do with the topic at hand, and everything to do with your own personal attacks. That's why Volokh says to avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Learn the rules.
11.18.2007 7:45pm
Litigator:

If you actually think Lawrence v. Texas or the capital punishment cases were correctly decided, please do so, and I will happily and humbly retract what I said.


... meaning that anybody who disagrees with your constitutional interpretation deserves the vitriol. Nice. I'm a supporter of gay marriage, an opponent of the death penalty-as applied, and I still think those decisions were garbage. There's no principled ground for distinguishing between Lawrence v. Texas and the Lochner era, except for whether or not you like the result. Investing the court with that much power is dangerous, and an invitation to judicial tyranny.
11.18.2007 8:19pm
ReaderY:
There would seem to be a clear difference between using the law of nations in historically international matters -- prize cases, ministers and consuls, treaties, contracts for international trade, etc. -- and using international law to decide the constitutionality of clearly domestic U.S. law. Similarly, there would seem to be a difference between using the historical common law the U.S. inherited from England -- specifically enshrined in the Bill of Rights -- and using the contemporary views of the British or other foreign governments to decide domestic U.S. matter
11.18.2007 8:29pm
allwrits (mail):
I find it interesting the shear hypocrisy on this issue. We rightly bash China, Iran &Sudan all the time for failing to live up to international human rights norms. Lawrence &the juvie DP decisions are nothing more than the realization that human rights are not defined by national borders and the protection of human rights at the end of the day is what the founders intended as the basis for our Republic.
11.18.2007 9:16pm
Benjamin Davis (mail):
KevinE - I hear the search for implicit limitation, but do you see the problem from the point of you of each state in the system? How are we to know the subtleties of French internal law games when we enter a treaty with them? How are they to know our internal law games? International law rules are derived from state practice in treaties and customary international law essentially and part of those rules is to really limit the effect of internal law rules to the maximum. Why? Because sovereigns are dealing with sovereigns. Those sovereigns developed rules to help them understand when another sovereign state was considered to be bound by a treaty or customary international law. Implicit approaches are simply not acceptable as it would give one sovereign state an excuse to step away from its international obligation. That is why one of the most important rules (one that is not really discussed much I think) in international law is that no state can extract itself from its international obligations through its domestic law. I hope everyone can see why such a rule would develop: states control the process of creation of their domestic law. If a state could pass a law that would change its international law obligation, treaty obligations could be changed unilaterally without consent of the other parties to the treaty. That is a recipe for instability on the international plane. A state can seek to convince other states to adjust the treaty to a new view, but that is a different process from an internal Congress, President, Courts game where everyone is of the same nationality.

Porkchop - On the Bricker amendment I was going from memory of discussions of it. No doubt there were isolationist involved but I have heard people who know that experience far better than me confirming the essential rationale was to avoid creating problems for segregation in the South.

On those who want to keep Constitutional interpretation pristine of foreign or international law, I just do not understand why the nationality of an idea should affect our willingness to look at it. We have our history of course, but we are not so alien nor other countries so alien that we might pick up a good idea here or there. It all seems like such a bugaboo and really an effort to make a virture of staying ignorant of the world.

Best,
Ben
11.18.2007 9:56pm
Pluribus (mail):
Benjamin Davis wrote:

On those who want to keep Constitutional interpretation pristine of foreign or international law, I just do not understand why the nationality of an idea should affect our willingness to look at it. We have our history of course, but we are not so alien nor other countries so alien that we might pick up a good idea here or there. It all seems like such a bugaboo and really an effort to make a virture of staying ignorant of the world.

Yes, it's a kind of xenophobia which is confused with constitutional originalism and political conservatism. A dangerous mixture, in my opinion, which does not answer to rules of logic.
11.18.2007 10:07pm
Ken Arromdee:
On those who want to keep Constitutional interpretation pristine of foreign or international law, I just do not understand why the nationality of an idea should affect our willingness to look at it.

If the nationality of the idea doesn't affect our willingness to look at it, then we don't need to quote international law at all. The judge can just state the idea without giving any international law reference, since it works both ways--the fact that it's a foreign law shouldn't positively affect our willingness to look at it either.
11.18.2007 10:34pm
AK (mail):
Someone should tell that to the Justices of the Supreme Court, who have spent a lot of ink on how the guarantees of jury trials in English Common Law in 1791 are enormously important to the meaning of the Seventh Amendment.

I covered this in my response to Objection 4. To quote myself:
I agree, but only to the extent that English law tells us something about the original meaning of phrases like "establishment of religion," "cruel and unusual," "high crimes and misdemeanors," and the like. I don't care one bit what "good behavior" means in modern English law. I only care what it meant 220 years ago.
"ReaderY" got it exactly right.

But under Missouri v. Holland, treaties can be used to give Congress powers not otherwise enumerated. So the interpretation of a treaty might have quite a lot to do with the Constitution, insofar as it expands Congressional powers beyond Article I.

A ratified treaty is not foreign law. It's American law.

So the Justices of the Supreme Court decide to look to a first world democracy as an example, rather than looking to a totalitarian dictatorship. Why stop there: Iran still has the death penalty, and unlike every civilized country in the world, still imposes it on juveniles. Why don't we look to Iran as an important moral and legal example for the United States?

Don't like the death penalty example? Okay, let's use abortion. Most modern, civilized, free nations have more restrictions on abortion than the U.S. does. Would Ginsburg ever use Italian, Mexican, or British restrictions on abortion to determine whether there was a fundamental right to a 9th month abortion?
11.18.2007 11:04pm
gr (www):
"France may have abolished capital punishment, to Ginsburg's delight, but China hasn't. But we can ignore China. Move right along, nothing to see here."

In my mind citing to France's abolishment of capital punishment and China's maintenance of it helps the argument against capital punishment.
11.19.2007 2:40am
JPaulG (mail):
Look at the experience of "English" English language common law since the core former colonies (Canada, Australia, New Zealand) became judicially independant. Whilst those countries and England have started from a common root the common law in those countries is diverging, and in some cases quite markedly.

Whilst I think it's true to say that those countries will be informed by what each other has done in similar situations, their equivalents of the SCOTUS are quite keen on retaining some semblance of independence and by no means rubber stamp what some other country has done.
11.19.2007 2:41am
a knight (mail) (www):
This is a stealthy way to avoid clear Constitutional dictates. There is a category in which International Law has force in America. The category is Treaties entered into by the United States Government, and International Law rightfully possesses Constitutional legitimacy within this category. U.S. Constitution Article VI; Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


There is no need to augur the Constitution's entrails in an effort to divine its original intent here. The rule is clear, yet there are some present-day Conservative members of the Federal Bench who instead of being bound by the Constitution's clear dictates regarding the Supreme Law of The Land, would prefer to ground their decisions upon interceding tradition:
"'Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.' U.S. CONST., art. VI, cl. 2. Even so, this country has traditionally negotiated treaties with the understanding that they do not create judicially enforceable individual rights."

Arthur Raymond Randolph, Hamdan v Rumsfeld July 15, 2005 - Appeal from the United States District Court for the District of Columbia (04cv01519)

Judge Randolph should be commended for his artful truncation of Article VI; Clause 2 in this instance. No need to confuse with contemplations of what should dictate a judicial decision: being textually bound by The Supreme Law of The Land, or precedent grounded upon the shifting sands of 'tradition'.
11.19.2007 3:12am
KevinE (www):
Benjamin Davis, thanks for your reply. I agree with your overarching theme that treaties depend upon the ability of the sovereign states to trust one another and be held accountable, as with any contract. I also see that it would be ideal if sovereign states could be modeled as singular black box entities.

Nevertheless, in determining trust, it seems unrealistic to divorce external treaties from the internal delegation of limited authority to make those treaties. For example, if the US entered the UN small arms treaty that Alec Rawls mentioned, it seems reasonable to believe that an internal crisis would result which would directly impact the sustainability of that treaty. Thus, such a treaty should be less worthy of trust than one which would not so clearly contradict the internal constitution. Would this constitute "internal law games" (indeed, is all internal law "games" to those outside?) or should external parties reasonably doubt the US authority to enter into the treaty without an internal constitutional amendment?
11.19.2007 3:44am
Ralph Phelan (mail):
DangerMouse wrote:

Direct election of Senators was considered a good thing.

Yeah, and I think it worked out rather badly in the long run.

The Senate now acts like second House, fickle and poll-driven , and power continues to flow from the states to Washington at an ever greater rate.
11.19.2007 9:29am
martinned (mail) (www):
L.S.,

@JPaulG: In fact, different common law jurisdictions cite each other's case law quite regularly, in the same way that different US state courts cite each other's rulings. When I studied law in Ireland, I regularly studied cases not only from England, but also from Scotland (Donahue v. Stevenson!), Australia, New Zealand or Canada. The only outlier seems to be the US, which is also the only common law jurisdiction where Donahue is not good law.

Incidentally, under the Dominion Act, a lot of former English colonies still send appelate cases to London, to be ruled on by the judicial division of the Privy Council, which happens to contain the same memers as the judicial division of the House of Lords, the supreme court of the UK.
11.19.2007 9:34am
MikeS (mail):

Roe v Wade - an abomination of law if ever there was one - is proof that Congress is generally incapable of overturning bad decisions.


Particularly when most of the voters favor them.
11.19.2007 1:07pm
Benjamin Davis (mail):
Kevin E - I hear you - if the United States were to become a member of that treaty the obligation would be on the United States. The question on the Second Amendment (I believe that would be the concern - if I am wrong let me know) is how our Second Amendment jurisprudence would operate AFTER the signing of the treaty.

For example, we may consider the treaty non-self-executing and thus have internal law approaches under the Constitution that violate the treaty obligations. In having those divergent internal law approaches, the point is that we would be in breach of the treaty obligations we had signed on to.

Now I think you are thinking that the other state is supposed to understand that the persons signing on for the United States can not have the authority to give the consent to be bound to this language because of some internal rule. The way the rule on this is drafted is to keep that possibility as a very narrow possibility under the Vienna Convention on Law of Treaties. States are not supposed to be experts on the internal law of other states when they enter into agreements. They are sovereign equals dealing with each other through representatives.

The ultimate solution one would expect is that the United States would not voluntarily take on that obligation through signing the treaty.

I was thinking also that other states might not wish to characterize what happens as a breach, might not want to do anything about any so called breach, or might want to do something about the so called breach. It is a dance from acquiescence to resistance in the responses of the other states to the US (or any state's) alleged breach of the treaty obligation.

I am not trying to use language of trust but more language of obligation coming from the text of the treaty.

Hope this adds something to the discussion.

Best,
Ben
11.19.2007 3:50pm
Dan28 (mail):

Don't like the death penalty example? Okay, let's use abortion. Most modern, civilized, free nations have more restrictions on abortion than the U.S. does. Would Ginsburg ever use Italian, Mexican, or British restrictions on abortion to determine whether there was a fundamental right to a 9th month abortion?

Is there any lower form of argument than the "if this procedure contradicts your substantive policy preferences then you wouldn't approve of it" charge of hypothetical hypocracy? I mean, the juvenile death penalty opinion was not "there are a few countries that have abolished the death penalty for juveniles, why don't we do it too?" It was every country that is remotely democratic has abolished the death penalty for juveniles. And again, nobody is saying that is controlling. But of course it is relevant.

But anyway, if a justice wanted to use the fact that a few European states restrict abortion rights as one part of an argument in an abortion case, well, then I think that's a pathetically weak argument but my objection to it would not stem from an opposition to consideration of other legal systems.
11.19.2007 8:50pm
AK (mail):
Is there any lower form of argument than the "if this procedure contradicts your substantive policy preferences then you wouldn't approve of it" charge of hypothetical hypocracy?

Not hypothetical. The liberal justices didn't cite any contrary foreign opinion on capital punishment.

It was every country that is remotely democratic has abolished the death penalty for juveniles.

The opinions of foreigners expressed through their laws, no matter how enlightened you think they are, tell us nothing about the meaning of the American constitution.
11.19.2007 9:22pm
KevinE (www):
Benjamin Davis, it was probably a far fetched example where the Head of State would venture beyond his authority. And the dance of obligations you describe would undoubtedly result. I do wonder if ultra vires could be a valid argument in that dance, though I don't know enough to argue the point in detail. Thanks for the discussion.
11.20.2007 1:30am
Erin (mail):
The sole right for the Supreme Court to be the final authority in the constitutionality of law was provided for by our Founding Fathers. To change that would violate the constitution itself and is inherently un-American.
11.20.2007 12:18pm